On May 14, 2013, the Information and Privacy Commissioner (IPC) issued a long awaited appeal decision (pdf) on the Ministry of Natural Resources’ (MNR) and the Ministry of Transportation’s (MTO) refusal to release natural heritage reports. Ostensibly access was refused on the basis of Cabinet privilege. On appeal, the IPC ordered the release of these reports to Sierra Club Ontario Chapter (SCO).

This was a bizarre case of the left hand not talking to the right hand, and the Ministries wanting it both ways.

In January 2010, SCO sought the release of natural heritage reports prepared in connection with MTO’s application for a permit to override prohibited activities in relation to species at risk (SAR). The MTO made an application under section 17(2)(d) of the Endangered Species Act (ESA) to harm SAR in connection with a new highway to connect to a proposed international bridge between Windsor and Detroit. SCO sought access to these studies for the purposes of providing comments on the proposed permit, known as a Type D permit.

Type D permits are for activities that do not to assist in the recovery or protection of SAR. Before the Minister can approve a Type D permit, several conditions must be met. These include that the Minister must be of the opinion that there is a “significant social or economic benefit” to Ontario, and that the activity “will not jeopardize the survival or recovery” of the species in Ontario. Cabinet is also required to approve Type D permits.

During the course of that litigation, the Ministries took the position that the natural heritage reports requested of and produced by the MTO’s consultant were irrelevant to the Minister’s decision to issue the Type D permit. The Ministries advised that the consultant’s studies had never been before the Minister, though the reports had been provided to independent experts who were hired by the MNR to evaluate the project; the independent expert reports were before the Minister.

We thought it was curious that the Ministries took the position that natural heritage reports produced specifically for a permit application under the ESA were irrelevant to the Minister’s permitting decision; though the court found it consistent with the legal test for issuing a permit under the ESA, i.e. the legislation didn’t require a permit application by the proponent, so it was irrelevant to the Minister’s decision, as incongruant as that sounds.

However, this position was completely bizarre in light of the Ministries’ stated reasons for refusing access to these documents under the Freedom of Information and Protection of Privacy Act (FIPPA): that they were Cabinet privileged under section 12 of FIPPA. Given the Minister had not seen them, and that they were ostensibly irrelevant to the Minister, SCO was at a loss to understand how Cabinet would have seen them; or even if Cabinet had seen the reports, how could natural heritage studies reveal Cabinet deliberations? The permit itself was made public, on the other hand. The permit itself would seem to provide more evidence of Cabinet deliberations than the underlying natural heritage studies could ever do.

Ultimately, the IPC agreed that there was no basis for the Cabinet exemption under FIPPA, and ordered them released. Specifically the IPC determined at paragraphs 43 and 45 of its decision:

If a record is actually placed before Cabinet … that in itself is strong, but not necessarily determinative evidence that disclosing its content could reveal the substance of deliberations. However, as the ministry makes clear, the records were not placed before Cabinet. Therefore, in order to meet the requirements of the introductory wording of section 12(1) the ministry must provide evidence and argument sufficient to establish a linkage between the content of the records and the actual substance of Cabinet deliberations. … [T]he ministry has failed to do so here.

…

It is also significant that the ministry has not provided me with the Cabinet Submission that was actually placed before Cabinet … to support its position regarding the records at issue. In my view, the ability to compare the content of the records to the actual Cabinet Submission considered in the permit application process would be a logical and more compelling evidentiary basis for arguing the application of the introductory wording of section 12(1) than the generalized submissions provided by the ministry.

Though we had access to the reports during the litigation (under a court ordered seal; oddly, this disclosure to SCO was denied by the Ministries in the IPC proceeding), the information in them could not be disclosed for public scrutiny at the time nor could they be used when SCO needed to use them; that is during the consultation period.

Having had access to these records throughout the litigation, it remains a mystery to us why the Ministries went to such great lengths to keep these natural heritage studies out of the public’s eye, while releasing the reports of the independent experts who had peer reviewed the same reports, in some cases quite unfavourably.

What’s the point in offering public participation in important government decisions, if the government won’t give you relevant information you need? We’ve previously written about this, where we noted that in a 2001 audit, the Environmental Commissioner of Ontario had determined that information requests were unreasonably handled and caused unnecessary delays and higher costs. Were I a cynical person, I would say the consultation process is more of a “process to be gotten through” than a legitimate desire to consult. At least some times, it certainly feels that way.

Ten years later, nothing much has seemingly improved. But we hope that with this decision in hand, environmental organizations will have better access to information related to scientific reports generated for permits, generally, and specifically, for endangered species permit applications; that is, to the extent that they are still required under the ESA. But that’s another story: for two takes on recent amendments to the regulations which exempt certain activities from permits, see SCO: Ontario Government Abandons Endangered Species and Dianne Saxe: Endangered Species Act: permit by rule going ahead.